Dow v. Elec. Co.
| Decision Date | 27 July 1894 |
| Citation | 68 N.H. 59,31 A. 22 |
| Parties | DOW v. ELECTRIC CO. |
| Court | New Hampshire Supreme Court |
Exceptions from Hillsborough county.
Petitions by Samuel J. Dow against the Electric Company and by said company against Dow for the assessment of damages under the flowage act. Verdict for said Dow. Both parties except Exceptions overruled.
The plaintiff moved that 50 per cent. be added to the amount of the verdict The defendants objected on the ground that the provision of the statute requiring the addition is (1) unconstitutional, and (2) has been repealed. In his opening statement, counsel for the defendants said: "The law not only gives compensation; it gives more." To this the plaintiff objected. The court ruled that the statement was improper, and told the jury they could give only fair compensation. Thereupon the defendants' counsel proceeded as follows:
Burnham, Brown & Warren, for plaintiff.
D. Cross and Sulloway & Topliff, for defendants.
The question whether the statute requiring 50 per cent. to be added to the damages estimated by the committee or assessed by the jury (Pub. St. c. 142, §§ 16 and 17) is repealed by the act of March 30, 1893 (Laws 1893, c. 50), need not be determined. The plaintiff's petition for the assessment of the damages was filed August 31, 1891, and the defendants' like petition in March, 1892. A subsequent repeal of the statute could not affect the decision of the cause in this particular. Bill of Rights, art. 23; Woart v. Winnick, 3 N. H. 473; Dow v. Norris, 4 N. H. 10; Willey v. Epping, 16 N. H. 58; Towle v. Railroad Co., 18 N. H. 547; Smart v. Railroad Co., 20 N. H. 233; Rich v. Flanders, 39 N. H. 304; Kent v. Gray, 53 N. H. 576. When a legislative grant of authority to exercise the power of eminent domain contains a condition that the grantee shall pay more than the value of the property taken under the power, the grantee accepting the grant and exercising the power cannot question the constitutionality of the condition. The defendants were authorized to flow the plaintiff's land upon the condition, among others, that they pay the damages thereby done to him and 50 per cent. in addition. Pub. St c. 142, §§ 12-18. The statute is permissive. It confers a privilege, which the defendants were at liberty to exercise or not, as they saw fit. But they cannot take and enjoy the benefit without performing the condition on which it is given. By their exercise of the power...
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Story v. Concord & M. R. R.
...rule, though in the latter case a finding that the verdict was not affected thereby sufficed to prevent a new trial. In Dow v. Electric Co., 68 N. H. 59, 31 Atl. 22, the remarks objected to related to the law of the case, and not to the facts, and were not prejudicial. In Dow v. Weare, 68 N......
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State v. Corron
...object to any conditions which have been attached thereto by a grantor with power to entirely withhold the privilege. Dow v. Electric Co., 68 N. H. 59, 60, 31 Atl. 22; Electric Co. v. Dow, 166 U. S. 489, 490, 17 Sup. Ct. 645, 41 L. Ed. 1088. The only question open, therefore, is: What condi......
- Gano v. Minneapolis & St. Louis Railroad Co.
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In re Opinion of the Justices
...not as they saw fit. But they cannot take and enjoy the benefit without performing the condition on which it is given." Dow Electric Co., 68 N. H. 59, 60, 31 A. 22, 23. As before stated, the power to impose conditions upon grants is not to be treated as a power to tax, as taxation is unders......